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Juan Tomás Rodríguez Arano, Lawyer. Professor at the University of Navarra

Single contract... Open?

Wed, 15 May 2013 09:11:00 +0000 Published in La Razón

The proposal of a new labor contracting formula proposal from Brussels, has led to the umpteenth controversy in both the social agents and the Government of the Nation, which, according to what they say, does not satisfy any of them.

There is no exact data with respect to this possible "single open-ended contract".

It seems that its purpose is to simplify the multiple contractual modalities currently in force, and, as always when an important innovation is born in our labor law, to facilitate the creation of employment.

In my opinion, the positive aspect of such a contract would be that it would be indefinite from the beginning (without prejudice, of course, to the possibility, but not obligatory, of including a period of test).

The controversy arises both in the aforementioned freedom of the company to dismiss, (which is not new, since such freedom exists in the current application rules and regulations , with payment of the legally established indemnity), and in the "increasing" indemnity to be paid according to the period of service rendered, (which also exists in the current rules and regulations , since the longer the period of service rendered, the higher the indemnity).

Therefore, it must be understood that the risk of possible unconstitutionality of the aforementioned contractual formula would consist of attributing to business total freedom both to freely determine the unilateral termination of the contract of work, (i.e., without any disciplinary or objective cause to support it), and to determine the days of salary per year of service to be paid as compensation in each contract that is formalized.

Likewise, and in my pretended condition of jurist of the Social branch of law, I understand that the judicial authority cannot be suppressed from supervising the contractual terminations, since it would break the constitutional principle of effective judicial protection, serving as a mere example of this those cases in which the alleged contractual termination by free dismissal legally contemplated, masks a contractual termination unilaterally decided by the business, which had as real basis the violation of a constitutionally protected fundamental right, (by sex, religion, language, etc.).

Finally, it should always be remembered that companies contract staff, whatever the existing formulas for this purpose, when they have a productive activity that requires it, which is achieved mainly through access without excessive obstacles to the financial credit .